Law360 (June 3, 2024, 8:43 PM EDT) — Two immigrant advocacy groups suing the federal government over a Trump-era rule that narrowed asylum eligibility have told a D.C. federal judge that the changes must be vacated, arguing that former acting U.S. Department of Homeland Security chief Chad Wolf was improperly appointed, making the changes void.

Nonprofit organizations the Tahirih Justice Center and Ayuda said in a Friday motion for summary judgment that officials in then-President Donald Trump’s administration skirted the DHS line of succession in installing Wolf in 2019, making his actions in the post a legal nullity.

“The Anti-Asylum Rule never should have issued, because it was never approved by a Homeland Security official with the authority to do so — as the federal courts to consider the matter have all agreed,” the motion asserts.

Constitutional Accountability Center Deputy Chief Counsel Brian R. Frazelle, who represents the plaintiff organizations, said in a statement Monday that “every court to address the matter — eight in all — has agreed that Chad Wolf lacked authority to be the Acting Secretary of Homeland Security and therefore could not approve new DHS rules.”

That includes a D.C. federal judge who, in 2022, struck down a pair of regulations broadly delaying or preventing asylum-seekers from seeking permission to legally work in the U.S, ruling that Wolf “could not lawfully wield authority as Acting Secretary.”

“We’re asking the court to reach the same conclusion in our case because after three years the government has not rescinded the illegally approved rule we’re challenging,” Frazelle said.

Tahirih and Ayuda asked the D.C. court to vacate the rule, along with the “vague and sweeping limitations on asylum eligibility” that it imposes, in its entirety. Published in December 2020, the rule revised the standards to qualify for asylum and other fear-based deportation relief, in part by restricting the types of social groups eligible for protection. It also established a slew of disqualifying factors, such as failure to pay taxes, and redefined “persecution.”

Amid a court challenge to the regulations, however, a California federal judge in January 2021 issued a preliminary injunction blocking the asylum overhaul, an order that remains in force. Tahirih and Ayuda
launched their suit days after the injunction was handed down, and the litigation was put on hold a month later as the newly inaugurated Biden administration reviewed the asylum changes.

But urging the court to reanimate the proceedings last year, Tahirih and Ayuda said the federal government has yet to propose revisions. And “after two years of missed deadlines,” the groups said it is unclear when the new rules might materialize.

The organizations said Friday that although the injunction in California continues to bar the rule from taking effect, the mere promulgation of the regulations has harmed the organizations’ activities and jeopardized their funding.

And if the asylum law changes were to be implemented, “the rule’s sweeping restrictions on asylum would likely make it virtually impossible for a majority of their clients to obtain relief,” the motion argues.

“At a minimum, the rule would make Plaintiffs’ representation of their clients in asylum cases significantly more complicated and time-consuming,” the brief said.

DHS declined to comment Monday.

The organizations are represented by Gary DiBianco, Shirley Diaz and Eryn Hughes of Skadden Arps Slate Meagher & Flom LLP, and by Brian R. Frazelle, Brianne J. Gorod and Elizabeth B. Wydra of the Constitutional Accountability Center.

The federal government is represented by Christina Greer, Lindsay M. Vick and Ernesto Horacio Molina Jr. of the U.S. Department of Justice’s Office of Immigration Litigation.

The case is Tahirih Justice Center et al. v. Gaynor et al., case number 1:21-cv-00124, in the U.S. District Court for the District of Columbia.